Citation Nr: 0809217
Decision Date: 03/19/08 Archive Date: 04/03/08
DOCKET NO. 06-09 975 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUE
What evaluation is warranted for hepatitis C since June 27,
1994?
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Heather M. Gogola, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1973 to
March 1976.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a February 2003 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
New York, New York.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
A February 2003 rating decision granted service connection
for hepatitis C and assigned a 10 percent evaluation,
effective June 27, 1994. The veteran appealed, asserting he
deserved a higher rating. A February 2006 rating decision
granted the veteran a 30 percent evaluation for his hepatitis
C, effective June 27, 1994. The veteran continued his
appeal, claiming that his hepatitis C is 100 percent
disabling.
Unfortunately, after reviewing the voluminous record it is
apparent that further development is in order. In this
respect, while the record strongly suggests that an increased
rating is in order for at least part of the term since June
27, 1994, because there are multiple competing diagnoses, and
because the record is incomplete the Board is constrained to
conclude that further development is in order.
In this regard, during the pendency of this appeal, the
criteria for rating disorders of the digestive system,
38 C.F.R. § 4.114, Diagnostic Codes 7200-7354, were revised,
effective July 2, 2001. Under 38 C.F.R. § 4.114, Diagnostic
Code 7345 (2001), i.e., the old rating criteria, a 30 percent
evaluation was warranted for hepatitis C manifested by
minimal liver damage with associated fatigue, anxiety, and
gastrointestinal disturbance of lesser degree and frequency
but necessitating dietary restriction or other therapeutic
measures. A 60 percent evaluation was warranted for
hepatitis C with moderate liver damage and disabling
recurrent episodes of gastrointestinal disturbance, fatigue,
and mental depression. A 100 percent evaluation was
warranted for hepatitis C with marked liver damage manifested
by lifer function test and marked gastrointestinal symptoms,
or with episodes of several weeks duration aggregating three
or more a year and accompanied by disabling symptoms
requiring rest therapy.
Under 38 C.F.R. § 4.114, Diagnostic Code 7354 (2007), the new
criteria, hepatitis C manifested by daily fatigue, malaise,
and anorexia, with minor weight loss and hepatomegaly, or;
incapacitating episodes (with symptoms such as fatigue,
malaise, nausea, vomiting, anorexia, arthralgia, and upper
right quadrant pain) having a total duration of at least four
weeks, but less than six weeks, during the past 12-month
period warrants a 40 percent evaluation. Hepatitis C with
daily fatigue, malaise, and anorexia, with substantial weight
loss (or other indication of malnutrition), and hepatomegaly,
or; incapacitating episodes (with symptoms such as fatigue,
malaise, nausea, vomiting, anorexia, arthralgia, and upper
right quadrant pain) having a total duration of at least six
weeks during the past 12-month period, but not occurring
constantly, warrants a 60 percent evaluation. Hepatitis C
with near-constant debilitating symptoms (such as fatigue,
malaise, nausea, vomiting, anorexia, arthralgia, and right
upper quadrant pain), warrants a 100 percent rating.
The evidence shows that the veteran has been frequently
diagnosed with depression as well as several other
psychiatric disorders. Significantly, the record also shows
a long history of alcohol abuse, as well as a history of both
cocaine and heroin abuse. Hence, further development is in
order to determine whether it is at least as likely as not
that the various reports of depression since at least 2001,
and perhaps earlier, are due to hepatitis C, or whether it is
more likely than not, that depression is due to such
nonservice connected factors as alcohol, cocaine and/or
heroin abuse, and/or a personality disorder. Therefore, a
records review by a board certified psychiatrist is in order.
Further, under the old criteria evidence of "liver damage"
was necessary for an increased evaluation. The Board notes,
however, that a medical opinion addressing the quantitative
extent of any liver damage during the term is not of record,
at least until 2006 when the appellant began to be considered
for a liver transplant. Thus, further development is in
order.
Finally, since it has been several years since the appellant
was last examined for compensation purposes, further
development is in order. 38 U.S.C.A. § 5103 (West 2002).
Therefore, this case is REMANDED for the following action:
1. The RO must send the appellant a
corrective VCAA notice under 38 U.S.C.A.
§ 5103(a) (West 2002) and 38 C.F.R. §
3.159(b) (2007), that includes an
explanation as to the information or
evidence needed to establish effective
dates for the service connection claims
on appeal. Further, consistent with
Vazquez-Flores v. Peake, No. 05-355 (U.S.
Vet. App. Jan. 30, 2008), the RO must
ensure that the appellant has been given
full and complete notice of what is
specifically necessary to secure a higher
rating for his service connected
Hepatitis C for the appellate term since
June 27, 1994 under both the old and new
criteria.
2. The RO must contact the appellant, at
his most recent address of record, and
ask him to identify any medical care
provider who has treated his Hepatitis C
since October 2006. Thereafter, the RO
should undertake all appropriate action.
3. After completion of the foregoing the
RO should schedule the veteran for a
records review by a psychiatrist, and a
gastroenterology examination. The claims
folders are to be provided to each
physician for review in conjunction with
the examinations.
The psychiatrist is to conduct a detailed
review of the veteran's entire medical
history and complaints, and conduct any
necessary clinical evaluations. All
indicated tests and studies deemed
appropriate must be accomplished and all
clinical findings should be reported in
detail. Thereafter, the psychiatrist
must provide answers to the following
questions:
(a) Is it at least as likely as not,
i.e., is there a 50/50 chance, that
the reports of depression during the
appellate term since June 27, 1994
are due to the veteran's service
connected hepatitis C?
(b) Is it more likely than not, i.e.
is there more than a 50 percent
chance, that the appellant's reports
of depression during the appellate
term since June 27, 1994 are due to
nonservice connected factors to
include alcohol, cocaine and/or
heroin abuse, and/or a personality
disorder?
(c) If the examiner finds that
depression was not due to hepatitis
C during a part of the term since
June 27, 1994, the length of that
term should be defined by stating
the dates during which Hepatitis C
did not cause depression.
(d) If the examiner finds that the
appellant's depression was due to
hepatitis C during a part of the
term since June 27, 1994, the length
of that term should be defined by
stating the dates during which
Hepatitis C caused depression.
A complete rationale for each and
every opinion must be provided. If
the examiner cannot offer an opinion
without resort to speculation the
examiner must so state, and explain
why.
The gastroenterologist is to review the
evidence of record and address the
quantitative extent of any liver damage
during the term since June 27, 1994. If
the nature of any liver damage increased
or decreased at any point during the term
since June 27, 1994, the term dates of
that increase or decrease must be
identified.
The gastroenterologist must further
examine the appellant and provide an
opinion addressing the nature, extent and
frequency of any fatigue, malaise,
anorexia, weight loss, malnutrition and
hepatomegaly since July 2001. Further,
the examiner must identify the nature and
duration of any incapacitating episodes
with symptoms such as fatigue, malaise,
nausea, vomiting, anorexia, arthralgia,
and upper right quadrant pain. If the
nature of any Hepatitis C symptoms have
increased or decreased in severity since
July 2001, the beginning and ending dates
of those periods of increased or
decreased symptoms must be identified.
A complete rationale for each and every
opinion must be provided. If the
examiner cannot offer an opinion without
resort to speculation the examiner must
so state, and explain why
4. After the development requested above
has been completed, the RO should review
the examination reports to ensure that
they are in complete compliance with the
directives of this REMAND. If the
reports are deficient in any manner, the
RO is to implement corrective procedures
at once.
5. The RO should then readjudicate the
issue on appeal. If any benefit sought on
appeal is not granted, the RO must issue
an supplemental statement of the case.
The supplemental statement of the case
should address all evidence received in
the claims file since the February 2006
supplemental statement of the case. The
RO is to provide the veteran and his
representative an opportunity to respond.
The RO is advised that it is to make a
determination based on the laws and
regulations in effect at the time of its
decision, to include any further changes
in VCAA and any other applicable legal
precedent.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).